Lack of funds for death-penalty defense cited in bid for dismissal

By Bill Rankin

The Atlanta Journal-Constitution

A lawyer conceded Tuesday he was asking the Georgia Supreme Court for drastic remedies in the Gwinnett County death-penalty case against Khanh Dinh Phan.

Because the state has been unable to pay for Phan's defense, attorney Chris Adams argued, the court should dismiss the charges against the accused double murderer or bar the state from seeking the death penalty.

After Phan's arrest in March 2005, Adams and co-counsel Bruce Harvey were appointed to represent him. But the case has yet to go to trial and the cash-strapped state public defender system has been unable to pay for attorneys fees, investigators or expert witnesses.

"The state of Georgia has made Mr. Harvey and myself potted plants," Adams said. "We are lawyers in name only. ... The state of Georgia has failed, and failed miserably, in this case."

Gwinnett District Attorney Danny Porter agreed there has been no money for the defense and suggested the state defender system is "fatally flawed." But he stopped short of asking the justices to strike down the 2003 law that created Georgia's indigent defense system. He told the court it may have to address that question at a later date.

Instead, Porter urged the justices not to dismiss the charges or strike the death penalty, and asked they send Phan's case back to trial.

Porter said that the indigent defense statute violates the separation of powers because it transferred control of funding capital cases from trial judges to the Georgia Public Defender Standards Council. Under the relatively new system, he said, judges cannot maintain control over their capital cases when the state can't pay for the defense.

Porter also questioned whether Phan's defense team has been assertive enough in seeking funds. "What has the defense done in this case to force the issue other than sit back and wait?" the prosecutor asked.

Still, Porter conceded, "We all agree that funding has not been provided, and I don't know if there's a realistic possibility funding will be provided."

Phan was charged with killing Hung Thai, 37, and his 2-year-old son, Hugh, with gunshots to the back of their heads in their Lilburn home on Dec. 29, 2004. Authorities say Phan broke into the home and shot the family over a gambling debt. Thai's wife also was shot, but she survived and identified Phan as the shooter after waking up from being in a coma for seven weeks, police say.

During Tuesday's arguments, Justice David Nahmias asked whether one solution would be to dismiss Phan's indictment and let the case start again.

But Adams said that trying to start anew after waiting five years was not the answer. "Even if they brought us a bag of gold this afternoon, there is no reason for this court to believe Mr. Phan can get a fair trial," he said.

Harvey said Phan's lawyers have aggressively tried to get funds for his defense. They were told to wait because funding would become available in the future, Harvey said, "but we've never been given a cent."

In the coming weeks, the state Supreme Court is expected to issue a ruling in a similar challenge in which a Pike County death-penalty defendant has waited four years to go to trial because there was no money for his defense.